Judge Clears Way for Suit Against San Onofre Plant

A San Diego federal judge refused Wednesday to throw out an environmental group’s lawsuit alleging that the San Onofre nuclear power plant is violating federal pollution laws, saying it contains issues that are best left for a jury to decide.

U.S. District Judge Rudi M. Brewster did scale the suit back, however, saying there were technical legal grounds for trimming the handful of other claims in the case, including allegations of fraud.

Brewster’s ruling, issued after a lengthy hearing that focused on fine points of legal procedure, left intact the gist of the case brought against Southern California Edison by the San Francisco-based Earth Island Institute. Steve Crandall, a San Diego lawyer for the environmental group, said he was “very, very gratified.”

But the ruling also pleased a lawyer for the Rosemead-based utility, Los Angeles attorney Arthur Sherwood, who called the hearing a “step forward.” By cutting the added claims, Brewster eliminated the threat of punitive damages against Edison.

The suit was filed in November, 1990. The year before, a 15-year, $46-million study found that the San Onofre plant, which Edison operates on the coast south of San Clemente, has damaged offshore kelp beds and killed tons of fish in its cooling system.

Seeking expensive and far-reaching improvements, Earth Island brought the suit under the federal Clean Water Act.

That law allows concerned citizens to go to court to protest environmental harm--but only under a limited condition, when government regulators fail to “diligently prosecute” polluters.

Last July, nearly two years after the study was made public, the California Coastal Commission required Edison to improve the plant’s fish protection systems, build an artificial reef nearby and restore a coastal wetland somewhere in Southern California.

Meanwhile, the San Diego County Regional Water Quality Control Board, spurning its own staff recommendations, voted last February that evidence did not “clearly indicate” San Onofre was violating its pollutant discharge permit.

Crandall, the Earth Island attorney, argued Wednesday that neither agency had been diligent.

It took the Coastal Commission two years to consider the damage detailed in the 1989 report, and then the commission recommended steps to mitigate the damage, not fix it, Crandall said. The water board took another year and found no clear evidence of a problem, he said.

Sherwood, the Edison lawyer, contended that the two agencies had merely been careful in considering whether the plant was harmful to the environment.

Brewster said the issues would be best left for a jury to decide.

But, the judge ruled, Earth Island had no legal grounds to press other claims, including allegations that Edison defrauded state regulators or that the plant was an environmental “nuisance.”

Under the law, those kinds of claims can be brought only by government regulators, not a citizen’s group, Brewster said.